In the Matter of the Proposed                                 )
Debarment of                                                          )
                                                                               )
RICHARD C. LOUGH                                               )
2112 Hewitt Drive                                                  )
Billings, Montana 59102                                          ) P.S. Docket No. 1/149

APPEARANCES:
Melvin Rosenberg, Esq.
Law Department
United States Postal Service
Washington, D.C. 20260
for Robert E. Isaacs,

Assistant Postmaster General,
Logistics and Engineering Department
Richard C. Lough, Pro Se
Wenchel, Adam G.

POSTAL SERVICE DECISION

On March 8, 1971, Mr. Richard C. Lough, the Respondent in the above-captioned proceeding, was the contractor on Star Route No. 59143 for the transportation of mail between Billings, Montana, and Yellowstone National Park, Wyoming. On that date the Contracting Officer served notice on Respondent that he was removed as contractor on that route. The notice stated "This action is taken due to an altercation you had with the postmaster at Gardiner, Montana on March 5, 1971."

On appeal, the Board of Contract Appeals, the chairman not participating, upheld the Contracting Officer's action. On June 7, 1972, the Assistant Postmaster General, Logistics and Engineering Department, issued a notice suspending Respondent from eligibility to contract with the Postal Service. On appeal, that suspension was set aside by the decision of the Judicial Officer on account of a defect in the notice. The Assistant Postmaster General immediately issued notices of proposed debarment and of suspension pending the conclusion of the debarment proceedings. The instant proceeding is on the appeal from the Notice of Proposed Debarment.

The basis of the proposed debarment as stated in the notice is:

"It has been established in Appeal of Richard C. Lough, P.O.D. BCA No. 508 (decided November 3, 1971) by the Postal Service Board of Contract Appeals, on clear and convincing evidence, that on March 5, 1971, you shoved a mail cart toward Mrs. Mary J. Bauer, Officer-in-Charge at Gardiner, Montana, with the result that sacks hanging over the side of the cart struck her, and that thereafter you swore at Mrs. Bauer and began hitting her on the arm with your fists. Those actions constitute an assault and battery on Mrs. Bauer. It is my conclusion that you do not possess that reliability required of a Postal Service contractor." That an altercation took place between the Respondent and the Officer-in-Charge is undisputed. How the altercation arose and its details were in dispute. However, as pointed out in the Postal Service Decision on the first suspension, the Board of Contract Appeals found the facts to be substantially as recited in the Notice of Proposed Debarment rather than to be as Respondent contended they were. Since the Board of Contract Appeals was a proper tribunal to determine the facts in the proceeding before it, its findings are conclusive here. ^1/

While the facts found by the Board are binding here, the conclusion of the Board that they were sufficient to constitute proper cause under the terms of the contract for removal of Respondent from the route, does not compel the conclusion that Respondent should be barred from postal contracting. The reasons for debarring a person from postal contracting are different from the reasons for terminating a contractor's right to perform a particular postal contract and the criteria for taking these actions likewise differs.

Following the docketing of this appeal a hearing was held in Billings, Montana, for the purpose of receiving evidence to supplement the facts previously established and to provide a forum for the presentation of argument.

The Assistant Postmaster General rested on the record made in the proceeding in the Board of Contract Appeals case (Appeal of Richard C. Lough, P.O.D. BCA No. 508) relating to the termination of Contract No. 59143 (Tr. pp. 9 & 10) held by Mr. Lough. The Judicial Officer was requested to take official notice thereof and has done so. Although Mr. Lough indicated he had intended to call certain witnesses, including postal personnel, present in the hearing room, he subsequently elected not to call any witnesses.

There is no evidence that Mr. Lough's assault on Mrs. Bauer was premeditated nor that he intended to do her serious bodily harm. However, he question remains as to whether similar conduct could be expected from Mr. Lough should he resume transporting mail between postal installations.

Mr. Lough insisted in the BCA case as well as in this case that he was right and reasonable in taking the action he did. Mr. Lough's persistence in this view precludes me from viewing the incident as one that is not likely to be repeated. Further, Respondent's demeanor throughout the hearing indicated an unusually aggressive personality that might well lead him to overreact and take physical action against postal employees whom he believed to be improperly interfering with his mail transportation duties or to be persecuting him.

Upon consideration of the record in this case, the decision of the Board of Contract Appeals in P.O.D. BCA No. 508 and the record of that case, I must find that through clear and convincing evidence it has established that Respondent violated his obligation under the Star Route Contract as specified in the Notice of Proposed Debarment. I further find that such conduct was of such a serious nature as to justify debarment of Respondent. Finally, having found that the conduct cannot be regarded merely as an isolated incident not likely to be repeated, I conclude the public interest requires Respondent to be debarred from postal contracting in accordance with the applicable regulations. ^2/

The Assistant Postmaster General specified a debarment period of three years in his notice to Respondent. No cause has been shown for reducing that period. However, in view of the fact that Respondent has been suspended from contracting since June 7, 1972, the three-year period shall be computed from that date.

Accordingly, Richard C. Lough, the Respondent herein, is debarred as a contractor or subcontractor on Postal Service contracts for a period of three years commencing June 7, 1972, as provided in applicable postal regulations (Title 39 C.F.R. Parts 956 and 957) unless before the end of that period the debarment is removed or the period is reduced in accordance with 39 C.F.R. 956.6.

In reaching this conclusion I have considered the letter and attachments Mr. Lough sent to me on October 13, 1972.

____________________

1/ 46 Am.Jur. § 395. In a suit brought by Respondent to set aside the Board's decision, the court upheld the Board's action. See Memorandum Opinion and Order dated September 6, 1972, in Lough v. Klassen, Civil No. 1026, U.S.D.C. Montana, Billings Division. (Tr. p. 34). Nevertheless, the extended argument did illuminate the conditions existing under the contract and the relationship between Mr. Lough and postal personnel.

2/ 39 C.F.R. Parts 956 and 957.